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Artemis Hosting Terms and Conditions GDPR 03.18

Please read these Web Hosting Terms carefully, as they set out the legal rights and obligations in relation to web hosting services provided by Artemis Internet Marketing Ltd, a company registered in England (05178285) whose registered office is at Archer House, Britland Estate, Northbourne Road, Eastbourne, East Sussex, BN22 8PW (the “Company”) to clients wishing to use those services to host their website(s) (the “Customer”).

The Customer’s agreement to comply with and be bound by these terms is deemed to occur on its email confirmation to the Company indicating its acceptance to these terms, the charges and any other web hosting specific terms sent by email to the Customer from the Company (and these terms and any additional terms contained in such email collectively being the “Agreement”).

If you have any questions or complaints about these terms or our services, please contact us by email to hosting@artemis.marketing

AGREEMENT:

1. Commencement and Duration

1.1 This Agreement will come into force on the date on which the Customer sends a confirmation email to the Company indicating its acceptance to these terms, the charges and any other web hosting specific terms sent by email to the Customer from the Company.

1.2 This Agreement will continue in force indefinitely, unless and until terminated in accordance with Clause 12.

2. Transition and implementation

2.1 At the request of the Customer, the Company will transfer the Website from its own development servers or use reasonable endeavours to assist with the transition of the Website from any third party host, provided that such transfer work has been quoted for by the Company and accepted in writing (including via email) by the Customer in advance. It is the Customer’s responsibility to check all functionality of the Website following a transfer to the Company, especially that any contact forms are being received to the correct email addresses. Work relating to the initial setup of the Website will be quoted and billed separately and are not included in ongoing monthly hosting costs.

2.2 The Company will implement the hosting of the Website from the date on which the Website goes live on the Company’s server (in either case the “Implementation Date”).

2.3 Within 5 business days following the Implementation Date, the Customer will comprehensively test the hosting of the Website and will inform the Company of the results of those tests.

3. Services

3.1 From the date of actual implementation, the Company will provide web hosting services (the “Services”). The Company is under no obligation to provide any services that do not form a part of the Services unless both parties agree to the provision of additional services in writing.

3.2 The Company may suspend some or all of the Services in order to carry out scheduled and emergency maintenance or repairs and, to the fullest extent permitted by law, the Company shall not be liable for hosting hardware downtime or interruptions to the Service. Subject to this, the Company will use its reasonable endeavours to ensure that the Website operates on a constant, uninterrupted basis throughout the term of the Agreement. Where the provision of the Services is interrupted through the fault of any third party, the Company shall bear no responsibility or liability.

3.3 The Company may at its discretion make available to the Customer the ability to update or amend the Website.

3.4 The Company will not provide any email services to the Customer as part of the Services

3.5 The Company will make available, on business days between the hours of 9.00 am and 5.00 pm (London time), a telephone helpdesk facility for the purpose of providing support to Customers in respect of the Services.

3.6 The Company will make back-ups of the Website at least on a daily basis, and will retain such back-ups for 10 days.

3.7 Subject to clause 3.8, the Company will perform routine theme, framework and plug in updates to the WordPress CMS system (if applicable) to the Website, as part of the Services at no extra cost.

3.8 The Company reserves the right to quote on a time and materials basis for any updates to the Website that risk the stability and/or functionality of the Website in any way (which shall be determined in the Company’s professional opinion). In these circumstances the Company shall send the Customer the estimated cost to complete the pertinent updates. Following receipt of such estimate, the Customer shall promptly instruct the Company in writing to either: (a) carry out the update(s) on a time and materials basis;; or (b) instruct the Company not to undertake the work required. If the Customer instructs the Company to carry out such updates, a development server would be setup and all updates would be installed by the Company and then the Customer would be responsible for approving the changes prior to roll out on the live server. If the Customer instructs the Company not to undertake the work required and the Company in its sole discretion considers that this poses a security threat to the integrity of the server, notwithstanding clause 12.1, the Company reserves the right to terminate this Agreement with immediate effect.

4. Customer Responsibilities

4.1 The Customer will provide the Company in a timely manner with all co-operation, information and documentation reasonably required for the provision of the Services, and the Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services.

4.2 The Customer will be responsible for obtaining any licences necessary from third parties which are required for the full use of the Services.

4.3 It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis. The Customer will notify the Company immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.

4.4 The Customer shall be responsible for all activity relating to the Website and undertakes to ensure that: (a) any and all personal information collected through the Website is gathered, processed and held in accordance with the relevant provisions of the Data Protection Act 1998; and from May 2018 the General Data Protection Regulation and (b) any and all e-commerce conducted through the Website complies with all relevant laws in force at the relevant time including, but not limited to, the Distance Selling Regulations 2000 and the EU E-Commerce Directive 2000.

5. Acceptable Use

5.1 The Customer must not use the Website or any of the Services:

(a) to distribute any obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities;

(b) for any purpose which is unlawful, fraudulent, or infringes any third party rights;

(c) in any way which may put the Company in breach of a contractual or other obligation owed by the Company to any third party (including any internet service provider);

(d) to distribute computer viruses, malware, spyware or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent; or

(e) to link to any other websites or systems hosting any material described above.

5.2 The Company reserves the right to remove content from the Website where it reasonably suspects there has been a breach of clause 5.1 and the Company may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.

5.3 The Website’s utilisation of bandwidth and storage limits must not exceed the reasonable limits imposed by the Company.

5.4 The Customer acknowledges that the Company does not purport to monitor the content of the Website or the use of the Services.

6 Charges and payment

6.1 The Company will issue invoices to the Customer for the charges agreed between the Customer and the Company via email (the “Charges”). The Charges will be invoiced by the Company monthly in advance during the term of the Agreement.

6.2 The Customer will pay the Charges to the Company within 30 days of the date of issue of an invoice issued in accordance with Clause 6.1 and in any event in advance of the period of Services to which the Charges relate.

6.3 All Charges stated in or in relation to the Agreement are exclusive of VAT, unless otherwise indicated.

6.4 Charges must be paid by GoCardless electronic DDM or bank transfer using such payment details as are notified by the Company to the Customer from time to time.

6.5 All Charges payable by the Customer to the Company must be paid in full, without set off or deduction. If the Customer does not pay any amount properly due to the Company under or in connection with the Agreement, the Company may suspend the Services or terminate the Agreement and claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998. Interest shall accrue on a daily basis from the due date of actual payment of the overdue amount. The Customer must pay the Company interest together with any overdue amount.

7 Intellectual Property and Warranties

7.1 Neither party shall acquire any rights in or over any intellectual property rights subsisting in any materials and/or property owned by the other party or by any third parties. Any such rights are used under a non-exclusive licence only to the extent required in order for the parties to provide and benefit from the Services.

7.2 The Customer hereby agree to fully indemnify the Company against all costs, expenses, liabilities, losses, damages, claims and judgments that the Company may incur or be subject to as a result of the infringement of any intellectual property rights arising out of the Customer’s failure to obtain the necessary rights and permissions from third parties with respect to any materials used by the Customer as hosted by the Company under the Agreement.

7.3 Where the Company provides access to third party software the Customer agrees to be bound by any licence agreements relating to such software upon its first use of that software. The Customer may not under any circumstances: (a) attempt to copy any hosting software; (b) attempt to reverse-engineer, decompile, disassemble or in any other manner derive source code from any hosting software; (c) write or otherwise create any derivative software that is based in whole or in part on any hosting software; or (d) sell, lease, transfer, sub-licence, or in any other way treat any hosting software as the Customer’s property.

7.4 The Customer warrants to the Company that it has the legal right and authority to enter into and perform its obligations under the Agreement.

7.5 The Company warrants to the Customer that it: (a) has the legal right and authority to enter into and perform its obligations under the Agreement; and (b)will perform its obligations under the Agreement with reasonable care and skill.

7.6 All of the parties’ liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, the Company gives no further warranty, express or implied, in connection with the Services as to fitness for purpose, quality, non-infringement or merchantability.

8 Liability

8.1 Nothing in the Agreement will exclude or limit the liability of either party for: (a) death or personal injury caused by that party’s negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability which may not be excluded or limited under applicable law.

8.2 Subject to Clause 8.1, the Company’s liability to the Customer under or in connection with the Agreement or any collateral contract, whether direct or indirect, foreseeable or otherwise, and whether in contract or tort (including negligence), will be limited as follows:

(a) the Company will not be liable for any: (i) loss of profits, income or anticipated savings; (ii) damage, loss or corruption of any data, database or software; (iii) reputational damage or damage to goodwill; (iv) loss of any commercial opportunity; (v) interruptions or downtime to the Services; (vi) any incompatibility, whether of the hosting software, hardware or the Website with any of the Customer’s own equipment (or that of any third party); or (vii) indirect, special, exemplary or consequential loss or damage;

(b) the Company will not be liable for any losses arising out of any event, or a series of related events, that is outside the Company’s reasonable control (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, internet service provider failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars); and

(c) the Company’s liability in relation to any event or series of related events will in no circumstances exceed the total amount paid by the Customer to the Company under the Agreement during the preceding 1 month period.

9. Data protection

9.1 The Customer warrants that it has the legal right to disclose all personal data that it discloses to the Company under the Agreement, and that the collection, processing and storage of that personal data by the Company for the purposes of and in accordance with the terms of the Agreement will not breach applicable data protection legislation.

9.2 This section applies to personal data provided by the customer for use on its website and personal data collected on the website through the use of forms, logs, analytics or other means (the “Customer Data”). This section does not apply to personal data such as contact details and billing details which the Company collects about the Customer for its own purposes including to provide the services detailed in this agreement.

9.3 The Company and Customer agree that, for the Customer Data processed under the terms of the Agreement, the Customer is the “Data Controller” and the Company is a “Data Processor” in accordance with the meaning of those terms in the data protection legislation currently applicable in the UK and each shall have the responsibilities and liabilities of those roles under that legislation.

9.4 The Customer consents to the Company using sub-processors in the performance of the Agreement including, but not limited to: IT managed service providers, security service providers and technical support providers.

9.5 The Company warrants that:

(a) it will act only on written instructions from the Customer in relation to the processing of any personal data performed by the Company on behalf of the Customer;

(b) it will ensure that people processing the data on behalf of the Company are subject to a duty of confidence;

(c ) it will ensure that any sub-processors are subject to a written contract containing obligations at least equivalent to the obligations in this section; and

(d) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of personal data and against loss or corruption of personal data processed by the Company on behalf of the Customer.

9.6 The Company will (to the extent that these apply to data processed under the Agreement):

(a) assist the Customer in providing subject access and allowing data subjects to exercise their rights under the GDPR;

(b) assist the Customer in meeting its data protection obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;

(c ) delete or return all personal data to the Customer as requested at the end of the contract (note that personal data held in backups will be deleted at the end of the backup retention period);

(d) submit to audits and inspections and provide the Customer with information required to ensure that both the Company and the Customer are meeting their legal obligations for data protection;

(e ) tell the Customer immediately if it is asked to do something that, in the Company’s opinion, infringes data protection legislation; and

(f) tell the Customer immediately if it becomes aware of a data breach that may affect personal data processed under the Agreement.

9.7 In light of the fact that at the time of drafting the Agreement applicable controller to processor standard clauses have not yet been approved by the European Commission or the Information Commissioner’s Office, the Customer agrees that the Company may, at any time on not less than 30 days’ notice, revise this section 9 by replacing all or part of it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

10. Confidentiality

10.1 Each party will keep confidential and not disclose or otherwise use (except as contemplated by the Agreement) any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential (“Confidential Information”) of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause 10.

10.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.

10.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.

10.4 These obligations of confidentiality will not apply to Confidential Information that:

(a) has been published or is known to the public (other than as a result of a breach of the Agreement);

(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or

(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.

11. Indemnity

The Customer shall fully indemnify the Company against all costs, expenses, liabilities, losses, damages and judgments that the Company may incur or be subject to as a result of: (a) the Customer’s misuse of the Services; (b) any breach by the Customer of the Agreement; (c) the Customer’s negligence or other act of default; and (d) the activities of third parties conducted on or through the Website.

12. Termination

12.1 Either party may terminate the Agreement at any time by giving at least 30 days’ written notice to the other party expiring at any time after the end of the six-month period following the date on which the Customer sends email confirmation to the Company indicating its acceptance to these terms, the charges and any other web hosting specific terms sent by email to the Customer from the Company.

12.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:

(a) commits any breach of any term of the Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so;

(b) fails to pay any sum due under the Agreement within 7 days of the due date for payment;

(c) is unable to pay its debts as they fall due or is the subject of bankruptcy or other insolvency procedures (such as the entry into of a formal or informal arrangement with creditors) or any other event analogous to the foregoing in any jurisdiction; or

(d) the other party ceases or threatens to cease to carry on business.

13. Effects of termination

13.1 Upon termination all the provisions of the Agreement will cease to have effect, except those which either expressly or by their nature relate to the period after the expiry or termination of the Agreement, which shall remain in full force and effect.

13.2 Termination of the Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.

13.3 Upon termination of the Agreement for any reason: (a) any sum owing by either party to the other shall become immediately due and payable; (b) the Company shall ensure the complete and secure removal of the Website and all related material from the hosting hardware; (c) provided full payment of all Charges due to the Company have been paid by the Customer, the Company will provide to the Customer an electronic copy of the Website; and (d) except in respect of any accrued rights neither party shall be under any further obligation to the other.

14. General

14.1 Any notice given under the Agreement must be in writing and must be delivered by post, or sent by email, to the addresses notified by one party to the other for this purpose.

14.2 A notice will be deemed to have been received 3 business days after posting if sent by first class post, the day of sending if the email is received on a Business Day and on the next Business Day if the email is sent on a weekend or public holiday.

14.3 No failure or delay by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right.

14.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, it shall be deemed severed from the Agreement and the other Clauses of the Agreement will continue in effect.

14.5 Nothing in the Agreement will constitute a partnership, joint venture, agency relationship or contract of employment between the parties.

14.6 Except as agreed in clause 9.7, the Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

14.7 The Company shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.

14.8 The Agreement is not intended to benefit any third party or be enforceable by any third party.

14.9 The Agreement constitutes the entire agreement and understanding of the parties in relation to its subject matter, and supersedes all previous agreements, arrangements and understandings (whether written or oral) between the parties relating thereto.

14.10 The Agreement will be governed by and construed in accordance with the laws of England and Wales and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

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